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[2013] ZALCJHB 122
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General Industries Workers Union of South Africa and Others v Dreiers (JS 571/10) [2013] ZALCJHB 122 (19 June 2013)
Not reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: JS 571/10
In the matter between:
GENERAL INDUSTRIES WORKERS
UNION OF SOUTH AFRICA
Applicant
BARNEY MALULEKA & 5
OTHERS
Second
to sixth Applicants
and
S DREIERS CC
Respondent
Heard: 16 May 2013
Delivered: 19 June 2013
Summary:
(Default judgment - retrenchment).
DEFAULT JUDGMENT
LAGRANGE, J
Introduction
Although the matter was opposed and the parties had concluded a
pre-trial minute, the respondent did not appear at the trial
proceedings. The respondent’s attorneys filed a notice of
withdrawal a couple of weeks before the trial date, but no other
attorneys were appointed in their place. From the court file, it
appears that the notice of set down was sent to them on 19 February
2013. In the abscence of either the respondent or its
representatives, the matter proceeded by default.
Evidence was given by Mr M Molefe, an official of the union, and Mr
B H Maluleka, the second applicant. Details of the individual
applicants’ earnings and age were confirmed in affidavits from
each applicant.
It was common cause on the pre-trial minute that the five individual
applicants (the second to sixth applicants) had each signed
written
agreements on or about 15 December 2009 that they would retire on 31
December 2009 and would receive, in addition to
statutory payments
due, an ex-gratia amount in full and final settlement of all claims
arising from their employment relationship.
The employer alleged that during previous discussions on
retrenchments in October 2009 it had been agreed with the individual
applicants that they would go on "early retirement" at the
end of December 2009. They claimed that they had been individually
approached late in November 2009 and were casually informed that the
job was finished and they must go on pension.
Material evidence
Mr Maluleka testified that after the initial retrenchments had taken
place in October 2009, there were rumours circulating at
the end of
November that year that there would be further retrenchments. He
spoke to the union organiser and a letter was sent
to the company on
27 November 2009, in which the union complained that the second and
further applicants had been advised that
the company wanted to
retrench them, without advising the union. The company's urgent
response was requested, but none was forthcoming.
Towards the end of December 2009, one N De Jager of the respondent
contacted Molefe and advised him that the individual applicants
had
left work. He later received the purported agreements entered into
by the individuals in terms of which they agreed to retire.
None of
these agreements presented in court were signed by the individuals,
though both witnesses agreed that the applicants
had signed a
document, but could not identify or understand what they had signed.
Maluleka, who claimed he had not been to school
and was illiterate,
said that De Jager had claimed he had spoken to Molefe when he asked
them to sign documents in November 2009.
When he received his
payment in December 2009, he was surprised by the amount and went to
query it and was told by De Jager that
he was no longer working for
the respondent.
Molefe denied that the position of the individual applicants had
been discussed during the pro-retrenchment consultations in
September 2009 according to a copy of a contract of employment the
agreed retirement age at the company was 65 years. At the
time of
their dismissals, none of the individual applicants had reached that
age.
Correspondence from the respondent’s employer organisation to
the union at the end of December 2009 maintained that the
applicants
had not been retrenched but had requested retirement. An extract
from one such letter dated 28 December 2009 reads:
"The agreements which were sent for
your attention relate to those staff members who have requested that
their services be
terminated is direct result of retirement and
should not be viewed as dismissal as result of operational
requirements."
(
sic
)
In the respondent's pleading, it did claim that these retirements
flowed from the previous consultations, and were seen as a
way of
avoiding additional retrenchments. In this regard, it is curious
that the individual agreements of retirement, which may
have been
signed by the second to further applicants, make no mention of the
retirement being canvassed in previous discussions,
and are drafted
in a manner that conveys the sense of an agreement reached with each
individual. It is also noteworthy that these
documents do not
confirm that it was the employees who requested early retirement.
The respondent had raised as a special plea the allegation that the
individual retirement agreements were concluded in full and
final
settlement of all claims arising from the employment relationship.
Certainly, there is a clause to that effect in those
documents.
However, there is no clear evidence before the court that the
applicants did in fact consent to their retirement in
writing, in
the absence of any signed document to that effect. Moreover, the
evidence suggests that they were not willing to
terminate their
employment and would not have raised their concerns with the union
if that was the case. Further, the evidence
before me does not
confirm that there was an understanding reached in the earlier
retrenchment discussions that a number of employees
would be retired
early subsequent to the retrenchments.
On balance, I am satisfied that the probabilities do not favour the
respondent’s case and that it is more likely that the
employer
had used the device of retirement to avoid a further retrenchment
exercise involving the individual applicants. A factor
which might
have played a role in this regard was the long service of the
individual applicants, which would have resulted in
significant
severance payments to them if they had been retrenched. I am also
not satisfied on the evidence that the individual
applicants
consented to their retirement freely and voluntary.
On the evidence, the employer was unresponsive to the unions
approach about the rumoured retrenchment of the individual
applicants
and only engaged with that after it had set the
retirement process in motion. Even then, it did not engage with
union with a
view to consulting about early retirement as an
alternative to retrenchment.
Conclusion and relief
It does appear that, the respondent’s business was contracting
and there may have been a general need to retrench. However,
in
retiring the individual applicants’, the respondent did not
follow a fair consultation process as envisaged in section
189 of
the Labour Relations Act 66 of 1995 (the LRA). The selection of the
applicants was based on their age, but none of them
had reached the
corporation's agreed retirement age. Termination of services on
account of age prior to an agreed retirement
age is specifically
protected in terms of section 187 of the LRA. Although, the
applicants did not claim that they had been dismissed
for an
automatically unfair reason on account of their age, it stands to
reason that selection for retrenchment based on age
prior to the
agreed retirement age at a firm could hardly constitute a fair
selection criterion.
In the circumstances I am satisfied that the individual applicants
were unfairly dismissed for operational reasons and their
dismissal
was both substantively and procedurally unfair.
The applicants were apparently paid an amount of R1000 for every 10
years of completed service as a gratuity, and I have given
consideration to this in determining the amount of compensation
awarded. However, they were not paid any severance pay to which
they
were entitled. I understand from the evidence available that in the
previous retrenchment exercise employees might have
been paid two
weeks’ severance pay per year of completed service, but
without more and in the absence of agreement the
applicants are not
entitled to more than the statutory amount of severance pay of one
week per year of completed service.
Order
The dismissal of the second to sixth applicants by the respondent on
31 December 2009 was a substantively and procedurally unfair
dismissal for operational reasons.
The respondent must pay each of the second to sixth applicants an
amount equivalent to seven (7) months’ of their respective
monthly salaries and one weeks remuneration per completed year of
service as severance pay, as set out in the table below.
Name
Length of
Service
(years)
Monthly
Salary
Weekly
Wage
Severance Pay
due
Compensation
due
T
G Ramogolokgota
35
R
8 000.00
R
1 847.58
R
64 665.13
R
56 000.00
Joseph
Pitsi
36
R
2880.00
R
665.13
R
23 944.57
R
20 160.00
Barney
Maluleka
20
R
2120.00
R
489.61
R
9 792.15
R
14 840.00
George
Madingwana
40
R
2880.00
R
665.13
R
26 605.08
R
20 160.00
Marcus
Kekana
30
R
3240.00
R
748.27
R
22 448.04
R
22 680.00
Elliot
Lekhuleng
41
R
2984.00
R
689.15
R
28 254.97
R
20 888.00
The respondent must pay the applicants’ legal costs.
The payments stipulated in paragraph [17] above must be made within
15 days of the respondent’s receipt of a copy of this
order.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
FOR THE APPLICANTS: M Bayi of GIWUSA
FIRST RESPONDENT: No appearance